A Tribute to Emmanuel Gaillard – 1952-2021
In Honorem Emmanuel Gaillard – 1952-2021
A totem, a monument, a giant, a genius, a maestro, an artist, a brilliant intellect, a builder, a leader; a great human being and a friend, immensely charming, with a mischievous, a wry or enigmatic smile …[1]
These are some of the tributes paid to Emmanuel Gaillard by many prominent arbitration lawyers, academics, former students, colleagues, former colleagues and friends, arbitral institutions and associations, when the cataclysmic news of his unexpected death, on 1 April 2021 at the age of 69, has reached the international arbitration community in France and around the world.
All have already praised his professional achievements and his humanity, and we all feel an immense loss, both professional and personal, and an inconsolable sadness.
For many of us, Emmanuel Gaillard was international arbitration and as such, we thought, immortal.
He has devoted all of his time and indeed his life to international arbitration, as a thinker, practitioner and mentor, who combined all the qualities, those of a lawyer, a judge and a scholar at an unparalleled level.[2]
His contribution to international arbitration has been without limit, as a professor, author of a treaties and of countless publications, lecturer at prestigious universities and conferences, as counsel and arbitrator, as global leader of Shearman & Sterling’s international arbitration practice for over 30 years, and very recently as founder of GBS Disputes, an international firm he initiated with his partners to “practice arbitration as an art”.[3]
His genius has been to theorize international arbitration in a coherent and limpid manner making it compatible with the daily practice of the matter. His influence is not confined to France but extends to the entire international arbitration community.
His doctrinal contribution is immense, as is the void that he leaves.[4] Emmanuel wrote on all aspects of international arbitration, authored the seminal treatise on international commercial arbitration,[5] while also writing extensively in investment arbitration.[6]
As an example of his vision, he coined the concept of the negative effect of competence-competence three decades ago, a concept that appears obvious to many of us today;[7] and that “ensures a harmonious relationship between the arbitral legal order and the State legal orders”.[8]
He more recently supported, explained and systemized the solution established by French case law to recognize awards annulled at the seat.[9] This was important and needed so that the award remains in existence even if set aside, since an international award is not integrated in the legal system of the State where the seat is located: “the law of the seat of the arbitration is not the sole source of validity of an arbitral award, the law of the place of enforcement being equally well positioned to assess whether an award should be recognized and enforced. […] While the approach does reject that the law of the seat of the arbitration constitutes the exclusive source of validity of the arbitral award, the rejection is in favor of the recognition that the binding nature of arbitral awards does come from the legal orders of states, the community of states willing to recognize the fundamentally private act that is an arbitral award”.[10] As is noted by one of his fellow professors, Emmanuel Gaillard’s analysis was that the purpose of this solution is to defeat the “application to arbitration of a single law, the law of the seat, which presents dangers and is a source of injustice, particularly with regard to the particularism or conservatism of certain laws”;[11] indeed, one of the conclusions reached by Emmanuel was that the New York Convention “invites States courts to exercise control on the award itself, as opposed to focusing on other court decisions ancillary to the award”. [12] One of Emmanuel’s most recent contributions focuses on the pro-enforcement spirit of the New York Convention, the cornerstone of the international arbitration system, and analyses in particular the pro-enforcement bias embodied in its Articles III, V and VII(1). [13]
Emmanuel was a “tireless promoter of the French conception of international arbitration”;[14] he did not merely confine his influence on the elaboration of French law on arbitration, but also contributed to disseminate the concept of international arbitration as a part of transnational law.[15]
Similarly, his analysis of the notion of lex mercatoria,[16] to which he preferred the expression of transnational law or transnational rules,[17] and his conclusion that the system of general principles cannot be reduced to the application of a list of rules but that it consists rather in a method that is an appropriate tool for resolving all disputes arising “out of contracts which the parties intended to be governed by transnational rule or to which arbitrators choose to apply transnational rules where the parties fail to elect a governing law”,[18] remains a source of inspiration for many academics and practitioners around the world.[19]
Emmanuel has never stopped thinking about international arbitration, both in his doctrine and in his practice. As a writer or as counsel on a case, Emmanuel has constantly strived for the greatest clarity and pedagogy. He got the best out of the people who worked with him, and he was even more demanding of himself.
On a more personal note, aside from his doctrinal contribution and his role as a mentor, what will remain to me after all those years is simply that I enjoyed working with him, and I will miss his enigmatic and mischievous smile.[20]
Christophe Dugué [21]
[1] See, A Tribute to Emmanuel Gaillard, Kluwer Arbitration Blog, 16 April 2021, available at http://arbitrationblog.kluwerarbitration.com/2021/04/16/a-tribute-to-emmanuel-gaillard/ last accessed on 17 June 2021.
[2] See, Éric Teynier, in A Tribute to Emmanuel Gaillard, Kluwer Arbitration Blog, 16 April 2021, available at http://arbitrationblog.kluwerarbitration.com/2021/04/16/a-tribute-to-emmanuel-gaillard/ last accessed on 17 June 2021.
[3] See, the website of Gaillard Banifatemi Shelbaya Disputes: https://www.gbsdisputes.com/?gclid=EAIaIQobChMIzYn_zaaN8QIVgoXVCh3sOwBgEAAYASAAEgJ_p_D_BwE#aboutus last accessed on 17 June 2021.
[4] See, Professor Ibrahim Fadlallah (“Le vide qu’il laisse est à la mesure de la place qu’il occupait, immense”) in his tribute to Emmanuel Gaillard, 6 April 2021, available at https://www.leclubdesjuristes.com/hommage/hommage-a-emmanuel-gaillard/ last accessed on 17 June 2021.
[5] See, Fouchard Gaillard Goldman on International Commercial Arbitration, second and revised edition (in English), 1999, first published in French in 1996.
[6] Emmanuel Gaillard commented on ICSID case law for many years since 1987 in the Journal du Droit International (“Clunet”).
[7] This is emphasized both by Philippe Pinsolle, in his tribute to Emmanuel Gaillard, 7 April 2021, available at https://www.leclubdesjuristes.com/hommage/hommage-a-emmanuel-gaillard-par-philippe-pinsolle/, last accessed on 17 June 2021; and by Professor Jean-Baptiste Racine, in his tribute to Emmanuel Gaillard in the Journal du Droit International, No. 2, 2021.
[8] See, Emmanuel Gaillard Dialogue des ordres juridiques: ordre juridique arbitral et ordres juridiques étatiques, Revue de l’arbitrage, 2018, No. 3, pp. 493 et seq.
[9] See, notably, Hilmarton, Cour de Cassation Civ. 1ère, 23 March 1994, https://www.legifrance.gouv.fr/juri/id/JURITEXT000007032023/ and Putrabali, Cour de Cassation Civ. 1ère, 29 June 2007, https://www.courdecassation.fr/jurisprudence_2/premiere_chambre_civile_568/arret_n_10607.html last accessed on 17 June 2021.
[10] See, Emmanuel Gaillard, L’exécution des sentences annulées dans leur pays d’origine, Journal du Droit International, No. 3, 1998, pp. 645 et seq.
[11] See, Professor Jean-Baptiste Racine, in his tribute to Emmanuel Gaillard in the Journal du Droit International, No. 2, 2021.
[12] See, Emmanuel Gaillard Dialogue des ordres juridiques: ordre juridique arbitral et ordres juridiques étatiques, Revue de l’arbitrage, 2028, No. 3, pp. 493 et seq.
[13] See, Emmanuel Gaillard and Benjamin Siino, Enforcement under the New York Convention, in The Guide on Challenging and Enforcing Arbitration Awards, 2nd Edition, May 2021, Edited by Emmanuel Gaillard, Gordon E Kaiser and Benjamin Siino.
[14] See, Professor Thomas Clay in his tribute to Emmanuel Gaillard, 8 April 2021, available at https://www.leclubdesjuristes.com/hommage/in-memoriam-emmanuel-gaillard-1952-2021/ last accessed on 17 June 2021.
[15] See, Professor Pierre Mayer in his tribute to Emmanuel Gaillard, 3 April 2021, available at https://www.leclubdesjuristes.com/hommage/disparition-demmanuel-gaillard-une-immense-perte-par-pierre-mayer/ last accessed on 17 June 2021.
[16] See, Fouchard Gaillard Goldman on International Commercial Arbitration, 1999, paras. 1443 et seq.
[17] See, Professor Jean Baptiste Racine, ibid, referring to Emmanuel Gaillard in Trente ans de Lex Mercatoria. Pour une application sélective de la méthode des principes généraux du droit, Journal du Droit International, 1995.
[18] See, Fouchard Gaillard Goldman on International Commercial Arbitration, 1999, para. 1499.
[19] See, Professor Pierre Mayer, ibid.
[20] See, the contributions of my former Shearman & Sterling colleagues, Fernando Mantilla-Serrano and Maude Lebois in Kluwer Arbitration Blog, 16 April 2021, available at http://arbitrationblog.kluwerarbitration.com/2021/04/16/a-tribute-to-emmanuel-gaillard/ last accessed on 17 June 2021.
[21] Christophe Dugué is a French qualified attorney (avocat au barreau de Paris), currently independent international arbitrator, an international arbitration practitioner who spent 17 years of his career at Shearman & Sterling (that he left in January 2008) working alongside Emmanuel Gaillard and was for 10 years a Partner in the International Arbitration Group of Shearman & Sterling led by Emmanuel Gaillard. Christophe Dugué may be contacted at https://www.christophe-dugue-law.com/.
